The Texas Entrepreneur & Angel Investor Conference Issues on Structuring the Angel Investor Deal

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1 The Texas Entrepreneur & Angel Investor Conference Issues on Structuring the Angel Investor Deal Matthew Lyons Andrews Kurth LLP 111 Congress Avenue, Suite 1700 Austin, Texas (512) Copyright 2008 Andrews Kurth LLP and J. Matthew Lyons All rights reserved.

2 Overview Key Terms Basic Deal Structures Angel Investor Issues Common Pitfalls Questions & Answers

3 Key Terms

4 Key Terms Pre-Money Valuation the value of the business before any investment by an outside party Possible to avoid / defer through the use of convertible bridge loans Post-Money Valuation the value of the business after the completion of an investment by an outside party Common Stock the most basic form of stock representing the residual value of the company; held by founders and employees Founder s Stock these are the shares that the founders of company purchase or typically receive at the creation of the company, usually for very low value (e.g. $0.001 per share) Reverse Vesting a mechanism to provide for time-based vesting, often imposed by an investor after the fact, to permit a company to a repurchase a decreasing percentage of shares of founder s stock over time based on a vesting schedule

5 Key Terms Option Pool a portion of the company s outstanding stock set aside for use as incentive compensation for present and future employees. Allocated and unallocated amounts and required increases included in pre-money valuation Preferred Stock a form of stock usually held by investors with certain rights and preferences superior to those of common stock, including liquidation preference, redemption and anti-dilution rights, and governance, voting and board rights and restrictions Liquidation Preference the right of preferred stock holders to receive the value of their investment before any other liquidation distributions are made to other equity holders. Usually includes participation provision for the preferred stock to continue to share proceeds with the common Antidilution Rights the right of preferred stock holders to maintain its fractional ownership percentage if shares are later issued at a lower valuation

6 Preferred Stock Liquidation Scenarios Example One: Participating Preferred $10 million sale price Preferred Stockholders invested $5 million for 50% of the company. Preferred Stock Common Stock Preference $5,000,000 $ Participation $2,500,000 $2,500,000 Total $7,500,000 $2,500,000

7 Preferred Stock Liquidation Scenarios Example Two: Participating Preferred with 3x cap $25 million sale price Preferred Stockholders invested $5 million for 50% of the company. Preferred Stock Common Stock Preference $5,000,000 $ Participation $10,000,000 $10,000,000 Total $15,000,000 * $10,000,000 * Note that the cap was reached but Preferred will not convert, as there is no difference

8 Preferred Stock Liquidation Scenarios Example Three: Participating Preferred with 3x cap vs. fully participating preferred $50 million sale price Preferred Stockholders invested $5 million for 50% of the company. 3x Capped Preferred Fully Participating Preferred Preferred Stock Common Stock Preferred Stock Common Stock Preference N/A* $ $5.0 million $ Participation $25,000,000 $25,000,000 $22,500,000 $22,500,000 Total $25,000,000 $25,000,000 $27,500,000 $22,500,000 * Note: 3x Cap ($15 million) would result in lower proceeds, so Preferred converts to Common

9 Basic Deal Structures

10 Structures Straight Loan very simple and no valuation needed, but no upside to investor; rarely used Bridge Loan Type 1: Convertible at next round price & no warrant coverage. Less upside compared to the risk of angel investment Favored by companies and VCs Type 2: Convertible at next round price with X% warrant coverage. Requires closing at least $250,000 to avoid Texas state usury laws Type 1 and 2 most common Type 3: Convertible at discount to next round price but generally prohibited in Texas due to usury concerns Common Stock simplest structure with minimal transaction costs but requires an implied valuation; rarely used taints option price Offers no investor protection Preferred Stock Seed Preferred: simple liquidation preference and other terms to permit some discounting of options Standard Preferred: standard venture capital formula preferred stock favored by more experienced investors but entails higher transaction costs Use varies with size of investment

11 Angel Investor Issues

12 Angel Investor Issues Lock in value of the investment or discount commensurate with risk (e.g. lower price than VC round) Participation on the Board of Directors and in business oversight Maintaining rights & preferences in future VC rounds of financing State usury laws prohibit > 18% interest Interest includes all other benefits payable (e.g. next round discount); warrants included on <$250,000 Under Texas law, the penalty equals the greater of (1) 3x the difference between the amount charged and the amount legally permitted amount or (2) the lesser of $2,000 or 20% of the principal

13 Common Start-up Pitfalls

14 Common Start-up Pitfalls Inadequate early stage structuring and poor recordkeeping (especially equity) Failure to protect intellectual property assets Investment by too many (or the wrong) friends, family and angel investors (administrative and management burden) Previous violations of state securities laws Unrealistic expectations of inexperienced early investors Previous unsupportable valuations Unique or non-standard terms in earlier financing agreements requiring significant revisions Too many board members and advisors ( hangers on ) Brokers and finders

15 The Texas Entrepreneur & Angel Investor Conference Questions? J. Matthew Lyons Andrews Kurth LLP 111 Congress Avenue, Suite 1700 Austin, Texas (512) The materials included herein provide a general description of certain legal and business matters and should not be construed as providing specific legal advice or establishing an attorney-client relationship.

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